People v. Wright

Headnote

Where in an indictment for forgery two distinct offences requiring different punishments are alleged in the same count, as where the forging of a mortgage and of a receipt endorsecHhereon are both charged in the same count, and the defendant be convicted, the judgment will be arrested.

In charging the forgery or felonious alteration of a mortgage, with the intent to defraud the mortgagor, it must be averred that there are in fact such lands as are described in the instrument, and that the mortgagor had an interest or right in the same.

Whether the forging by altering or destroying a receipt endorsed upon a mortgage would be adjudged a forgery of the mortgage, qwere.

Indictment for forgery. The defendant was indicted for forgery, in September, 1831, and tried at the general sessions in Tompkins. He was convicted and moved in arrest of judgment. The sessions suspended judgment for the purpose of talcing the advice of this court. The indictment contains four counts: in the first it is charged that on the 1st April, 1831, the defendant was lawfully possessed of an indenture of mortgage, executed to him by David Shafer and Jane his wife, which is set forth in Ticec verba; it purports to be a mortgage bearing date the 14th June, 1830, executed by Shafer and wife to the defendant, whereby the mortgagors, for the consideration of $225,50, conveyed to the defendant 25 acres of land, described as being part of lot No. 21, situate in Dryden, in the county of Tompkins ¡ it is conditioned for the payment of $225,50, of which $45,10 was to be paid on the 1st April, 1831, and the residue in four equal annual instalments. It is averred, that on the mortgage to wit, on the 1st April, 1831, there was endorsed a certain receipt acknowledging the payment of $78 upon the mortgage, whereby it was alleged the mortgage was reduced and made less and diminished by the sum of $78; that the defendant being so possessed of the mortgage with intent to injure and defraud Shafer, (the mortgagor) then and there to wit, on, &c. at, &c., “ feloniously did falsely forge and alter the said instrument in writing, commonly called a mortgage, and the said receipt, so endorsed thereon as aforesaid, by altering, tearing off, obliterating and de

stroying the said receipt, so endorsed thereon as aforesaid, whereby a pecuniary demand and obligation against the said David Shafer purported and appeared to be increased and affected, and by which said false forging and altering, t he said David Shafer might be and was affected, bound and injured in his person and property, against the form of the statute,” &c. The second count charges the defendant with feloniously and falsely making, forging, altering and counterfeiting the mortgage set forth in the first count, with intent to injure and defraud Shafer the mortgagor; whereby it was alleged a pecuniary demand and obligation against Shafer purported to be created, and the rights and property of Shafer to be affected, and by which felonious false making, forging, altering and counterfeiting, Shafer might be affected, bound and injured in his person and property, against the form of the statute, dec. The third count charges the defendant with feloniously uttering and publishing as true, a certain false, forged, altered and counterfeited mortgage, describing the instrument as in the first count, with intent to defraud Shafer, he the defendant well knowing the same to be forged„ against the form of the statute, &c. The fourth count charges that the defendant was in possession of the mortgage, that $78 had been endorsed on the same as paid, that the mortgage had been feloniously altered, forged and counterfeited by erasing, tearing off, obliterating and destroying the receipt endorsed on the same, and “ that the said receipt so endorsed upon the said mortgage, had then and there, to wit, on, &c. at, &c. been feloniously and falsely altered, erased, torn off, obliterated and destroyed by some person to the jurors unknown, whereby the said instrument of writing or mortgage, and the pecuniary obligation thereby imposed and created, was increased and purported to be increased by the said sum of seventy-eight dollars.” That Wright, well knowing that the instrument of writing had been so feloniously and falsely forged, &c. by erasing, tearing off obliterating, and destroying the said receipt, and that the said receipt had been so feloniously and falsely altered, erased, tom off, obliterated and destroyed, then and there, to wit, on &c. did feloniously alter and publish as true, the said false, forged, altered and counterfeited instrument of writing, with

Intent to defraud one Jacob form of the statute, &c. icCormick, contrary to the

By the statute against forgery, 2 R. S. 670, § 22, it is enacted that every person who shall be convicted of having forged, counterfeited or falsely altered any deed or other instrument, being or purporting to be the act of another, by which any right or interest in real property shall be, or purport to be in any way charged or affected with intent to defraud, shall be adjudged guilty of forgery in the first degree ; and by the 33d section of the same act, it is enacted, that any person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation shall be or purport to be created, increased, discharged or diminished, or by which any right or property whatever shall be or purport to be transferred, conveyed, discharged, diminished or in any way affected, and by which false making, forging, altering or counterfeiting any person may be affected, bound or in any way injured in his person or property, upon conviction thereof, shall be adjudged guilty of forgery in the third degree. The punishment for forgery is imprisonment in the state prison if convicted of the first degree, not less than ten years; if of the third degree, not exceeding five years. 2 R. S. 675, § 42. The indictment in this case is for the offence described in the 33d section; it is for the felonious destruction of the receipt or endorsement upon the mortgage, whereby a pecuniary demand or obligation against the mortgagor purported and appeared to be increased. The first count charges the alteration or forging of the mortgage as well as of the receipt, but the jury might convict of the lesser offence. 2 R. S. 702, § 27. An expunging of an endorsement of payment of part, on a note or other instrument for the payment of money is forgery. 1 Stra. 18. 2 East's Crown Law, 978.

The first count in the ’ indictment is for forging and altering a mortgage and a receipt endorsed thereon, A mortgage creates no personal responsi

bility unless there be a covenant for the payment of the mortgage monies, which is not alleged, 1 R. S. 738, § 139; 1 Wendell, 198; nor is it averred that any right or interest in real property was charged or affected by the alteration of the mortgage, it not being alleged that the mortgagor had any interest in the land mortgaged. 9 Cowen, 778. This count, therefore, as to the alteration of the mortgage, cannot be sustained under the 22d section of the act. Nor can it be sustained as to the alteration of the receipt; it is not alleged that a payment was made, and that the receipt was evidence of such payment. 9 Cowen, 781. Without such averment the receipt was a nullity; it might have been a mere memorandum endorsed by mistake. At all events, both offences being charged in the same count, and the verdict being general, the court cannot know of which the defendant is convicted. 9 Cowen, 586. 1 Chitty’s Cr. L. 169. 5 T. R. 623. Cowp. 682, 3. The second count is bad in describing the mortgage as a pecuniary demand or obligation, which it is not, and wholly omits to allege that it charged or affected real property. If these objections are well taken, the third and fourth counts fall of course.